Neal v. Old North State Land Co

• Decision Date: 25 April 1893
• Citation: 112 N.C. 841,17 S.E. 538
• Parties: NEAL. v. OLD NORTH STATE LAND CO.
• Court: North Carolina Supreme Court

17 S.E. 538

112 N.C. 841

NEAL.

v.OLD NORTH STATE LAND CO.

Supreme Court of North Carolina.

April 25, 1893.

Dismissal of Appeal— Neglect of Counsel.

A motion to reinstate an appeal dismissed for failure to print the record, because such failure was owing to neglect of appellant's attorney, must be denied, since the neglect of counsel is neglect of the party.

Appeal from superior court, McDowell county.

Action by Lizzie C. Neal against the Old North State Land Company. There was a judgment for defendant, and plaintiff appealed. The appeal was dismissed, and plaintiff moves to reinstate. Motion denied.

Affidavit: "B. B. Price, C. S. C, being duly sworn, says that he is informed there is a mistake in the affidavits of P. J. Sinclair, and also his own, recently sent to the supreme court In the above-entitled case, in regard to J. G. Neal and Lizzie C. Neal's knowledge of the transcript being sent up. Affiant did state in conversation with Sinclair that 'of course they knew it, ' but he based it on the ground that they prayed the appeal themselves, and filed the bond, and had never advised him not to make it out or send it up; and the furthet fact that Lizzie C. Neal said that there was no excuse for her attorney to mistake the week when the tenth district would be called, for she had looked at the almanac to see, and that when she, a woman, knew, he ought to have known. This conversation occurred the same weekthe cases from the tenth district were heard. At the same time she said that she had written to W. H. Malone to attend to her case. J. G. Neal also said, the same week and the day I received a telegram from J. P. Morphew, attorney, which [telegram] is filed in supreme court, that the attorney ought to have notified him in time, and he would have had the record printed for supreme court. Whatever statements in former affidavits made by him not In accord with what is herein stated were by misunderstanding, he is sure, by both himself and P., 1. Sinclair, and not intended to misrepresent the facts, and should not be allowed to prejudice the plaintiff or defendant in the case."

The appeal in this case having on motion been heretofore dismissed for failure to print the record, the appellant, after notice given, moves before the supreme court to reinstate the same.

J. F. Morphew, for appellant.

P. J. Sinclair, for appellee.

PER CURIAM. The additional explanatory affidavit of the clerk does not alter the case. The motion to reinstate must be denied. The neglect...